Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1887-01-15
Is IL Law
To he Editor cfhc Register.

In Gains case, % w. Va, 6sl, our Su-
preme Court of Appeals says: 'Where .
homicide is proved the presumption is that
it is murder in the second degree" The
statute says, Warths' Code, chapter LA,
section /: Murder by poison is
murder in the first degree. All other muir
der is murder of the second degree. " HON.
icide is defined rs being ''the killing OF any
human being" Murder is 1.-THE wiliul
killing of person with malice afore-
thought" There is wide difference be-
tween murder and homicide. Can our
Court change the statute? | can well see
how the law can divide murder into differ
ent degrees, and fix certain kinds of murder
aS murder of the first degree, and all other
kinds of Inurl,r rs murder Of the second
degree, but cannot comprehend how the
law can presume that the simple killing Of
a human being is murder in the second de-
gree.
IL this is law, then if a burglar should
break into my dwelling house to steal my
goods, and | should hear him and warn
him away, and he should make a murder
Gus attack on me, and | should kill him,
he law would presume that | was guilty
OF murder i'm the. second degree, and |
would have to be indicted, arrIigned, and
the Jury would be told by the court that
if they believed from the evidence that
had Killed the man, the presumption Is
that il is murder in the second degree, and
the burden OF proof rests upon me to re-
duce it! IL is shocking to think that a
court should make such IN enunciatiOn.
1t is curious to see how our court reached
this horrible legal conclusion. On page
TD9 of Gains case we are told that the lower
court instructed the Jury that where a
homicide is proved the presumption Is that
it is murder in the second degree, aud our
court says, This instruction is correct.
Hills ease, > Graft. 500" We turn to
Hills case and find that this was IN APP
pliCatiOn To the general court for u writ oil
error, and that the writ was refused,
that two of the Judges were absent,
and two diSSented. There were two
opinions filed in the case, one by Judge
Duncan, the other by Judge Baker. Judge
Baker does not say anything about homi-
eide being murder in any degree. Judge
duncan says that the application for u
new trial was based on the ground that
law and evidence did not justify the jury
I'M finding the prisoner guilty of murder in
the first degree. He also says rs To the
terms Of our statutes creating the dis
tinctiOn of murder m the hISt and second
degree, We shall content ourselves with the
Of the court in Jones case
| Leigh, 59S-and adopt it" In this case,
page 6l2, we lind all other homicide Thich
Iras murder al common lar, is now murder
i'm the second degree. This sounds like
Law. Judge Duncan then says: I'VE also
concur with the prisoners counsel IN their
pusition that under our statute every
homicide is prima hacie murder III the
second degree" This was Il mere dictum,
and that made in the lOOSeSt kind OF man
ner. Is law made by such a loose and
an expression of Il single judge :?
But someone may say this doctrine IL in
the svllLhuS at Hills ease. Sure enough,
Mr.. Pcarhy K Gratt0n-and he must then
have been Young man-SicaHed this from
Judge DunrIn'S opinion. Ii does seem
strange that our Supreme Court Of
Appeals should have been mislcd
BY such u ilimSy authority.
This is especially surprising when we read
lIeaton's ease %, West Virginia 773, where
our court, with great clearneSs, painStal-
ing and legal eruditiOn diSposes of legal
In that case the Lower
Court had instructed the jury that recent
exclusive possession of stolen goods offered
grounds for the presumption Of
fact that the pOSSCSSOr was the thief. And
strange to say there is abundant authority
for the doctrine of this instruction. Ac
cording To this law, if it be law, thief
might steal my neighbours horse, put him
into my stable, and in the morning lead a
party to my stable, and the law
would presume | was tbs thief. Away
with such law. Our court carefully ex-
amined this doctrine and on mature con-
with remarkable ability, an
nOuneed the law, and where it was neccs-
sary disapproved and oyerruled authorities
for the erroneous doctrine.
1t may be that our court will have Oc-
casion to re-examine the homicide doc
trine, and will bring the discrimination
that appears in HeatOn's case to bear on
this question. IfSO, the law of horsicide
will doubtless be announced more satisfac-
torily thSh it appears in Gains case.